An Essay On The Trial By Jury by Lysander Spooner (best free novels .TXT) 📕

This Volume,  It Is Presumed By The Author,  Gives What Will

Generally Be Considered Satisfactory Evidence,   Though Not All The

Evidence,   Of What The Common Law Trial By Jury Really Is. In A

Future Volume,  If It Should Be Called For,  It Is Designed To

Corroborate The Grounds Taken In This; Give A Concise View Of The

English Constitution; Show The Unconstitutional Character Of The

Existing Government In England,  And The Unconstitutional Means

By Which The Trial By Jury Has Been Broken Down In Practice; Prove

That,  Neither In England Nor The United States,  Have Legislatures

Ever Been Invested By The People With Any Authority To Impair The

Powers,  Change The Oaths,  Or (With Few Exceptions) Abridge The

Jurisdiction,  Of Juries,  Or Select Jurors On Any Other Than Common

Law Principles; And,  Consequently,  That,  In Both Countries,

Legislation Is Still Constitutionally Subordinate To The Discretion And

Consciences Of Common Law Juries,  In All Cases,  Both Civil And

Criminal,  In Which Juries Sit. The Same Volume Will Probably Also

Discuss Several Political And Legal Questions,  Which Will Naturally

Assume Importance If The Trial By Jury Should Be Reestablished.

For More Than Six Hundred Years   That Is,  Since Magna Carta,  In

1215 There Has Been No Clearer Principle Of English Or American

Constitutional Law,  Than That,  In Criminal Cases,  It Is Not Only The

Right And Duty Of Juries To Judge What Are The Facts,  What Is The Law,

And What Was The Moral Intent Of The Accused; But That It Is Also

Their Right,  And Their Primary And Paramount Duty,  To Judge Of The

Justice Of The Law,  And To Hold All Laws Invalid,  That Are,  In Their

Opinion,  Unjust Or Oppressive,  And All Persons Guiltless In Violating,

Or Resisting The Execution Of,  Such Laws.

Unless Such Be The Right And Duty Of Jurors,  It Is Plain That,  Instead

Of Juries Being A "Palladium Of Liberty" A Barrier Against The Tyranny

And Oppression Of The Government They Are Really Mere Tools In Its

Hands,  For Carrying Into Execution Any Injustice And Oppression It

May Desire To Have Executed.

But For Their Right To Judge Of The Law,  And The Justice Of The Law,

Juries Would Be No Protection To An Accused Person,  Even As To

Matters Of Fact; For,  If The Government Can Dictate To A Jury Any Law

Whatever,  In A Criminal Case,  It Can Certainly Dictate To Them The

Laws Of Evidence. That Is,  It Can Dictate What Evidence Is

Admissible,  And What Inadmissible,  And Also What Force Or Weight

Is To Be Given To The Evidence Admitted. And If The Government Can

Thus Dictate To A Jury The Laws Of Evidence,  It Can Not Only Make It

Necessary For Them To Convict On A Partial Exhibition Of The

Evidence Rightfully Pertaining To The Case,  But It Can Even Require

Them To Convict On Any Evidence Whatever That It Pleases To Offer

Them.

That The Rights And Duties Of Jurors Must Necessarily Be Such As Are

Here Claimed For Them,  Will Be Evident When It Is Considered What

The Trial By Jury Is,  And What Is Its Object.

"The Trial By Jury," Then,  Is A "Trial By The Country" That Is,  By The

People As Distinguished From A Trial By The Government.

It Was Anciently Called "Trial Per Pais"   That Is,  "Trial By The

Country." And Now,  In Every Criminal Trial,  The Jury Are Told That The

Accused "Has,  For Trial,  Put Himself Upon The Country; Which

Country You (The Jury) Are." 

The Object Of This Trial "By The Country," Or By The People,  In

Preference To A Trial By The Government,  Is To Guard Against Every

Species Of Oppression By The Government. In Order To Effect This

End,  It Is Indispensable That The People,  Or "The Country," Judge Of

And Determine Their Own Liberties Against The Government; Instead

Of The Government's Judging Of And Determining Its Own Powers

Over The People. How Is It Possible That Juries Can Do Anything To

Protect The Liberties Of The People Against The Government,  If They

Are Not Allowed To Determine What Those Liberties Are?

Any Government,  That Is Its Own Judge Of,  And Determines

Authoritatively For The People,  What Are Its Own Powers Over The

People,  Is An Absolute Government Of Course. It Has All The Powers

That It Chooses To Exercise. There Is No Other Or At Least No More

Accurate Definition Of A Despotism Than This.

On The Other Hand,  Any People,  That Judge Of,  And Determine

Authoritatively For The Government,  What Are Their Own Liberties

Against The Government,  Of Course Retain All The Liberties They Wish

To Enjoy. And This Is Freedom. At Least,  It Is Freedom To Them;

Because,  Although It May Be Theoretically Imperfect,  It,

Nevertheless,  Corresponds To Their Highest Notions Of Freedom.

To Secure This Right Of The People To Judge Of Their Own Liberties

Against The Government,  The Jurors Are Taken,  (Or Must Be,  To Make

Them Lawful Jurors,} From The Body Of The People,  By Lot,  Or By

Some Process That Precludes Any Previos Knowledge,  Choice,  Or

Selection Of Them,  On The Part Of The Government.

This Is Done To Prevent The Government's Constituting A Jury Of Its

Own Partisans Or Friends; In Other Words,  To Prevent The

Government's Packing A Jury,  With A View To Maintain Its Own Laws,

And Accomplish Its Own Purposes.

It Is Supposed That,  If Twelve Men Be Taken,  By Lot,  From The Mass Of

The People,  Without The Possibility Of Any Previous Knowledge,

Choice,  Or Selection Of Them,  On The Part Of The Government,  The

Jury Will Be A Fair Epitome Of "The Country" At Large,  And Not Merely

Of The Party Or Faction That Sustain The Measures Of The Government;

That Substantially All Classes Of Opinions,  Prevailing Among The

People,  Will Be Represented In The Jury; And Especially That The

Opponents Of The Government,  (If The Government Have Any

Opponents,) Will Be Represented There,  As Well As Its Friends; That

The Classes,  Who Are Oppressed By The Laws Of The Government,  (If

Any Are Thus Oppressed,) Will Have Their Representatives In The Jury,

As Well As Those Classes,  Who Take Sides With The Oppressor   That Is,

With The Government.

It Is Fairly Presumable That Such A Tribunal Will Agree To No

Conviction Except Such As Substantially The Whole Country Would

Agree To,  If They Were Present,  Taking Part In The Trial. A Trial By

Such A Tribunal Is,  Therefore,  In Effect,  "A Trial By The Country." In Its

Results It Probably Comes As Near To A Trial By The Whole Country,  As

Any Trial That It Is Practicable To Have,  Without Too Great

Inconvenience And Expense. And. As Unanimity Is Required For A

Conviction,  It Follows That No One Can Be Convicted,  Except For The

Violation Of Such Laws As Substantially The Whole Country Wish To

Have Maintained. The Government Can Enforce None Of Its Laws,

(By Punishing Offenders,  Through The Verdicts Of Juries,) Except

Such As Substantially The Whole People Wish To Have Enforced. The

Government,  Therefore,  Consistently With The Trial By Jury,  Can

Exercise No Powers Over The People,  (Or,  What Is The Same Thing,

Over The Accused Person,  Who Represents The Rights Of The People,)

Except Such A Substantially The Whole People Of The Country

Consent That It May Exercise. In Such A Trial,  Therefore,  "The

Country," Or The People,  Judge Of And Dtermine Their Own Liberties

Against The Government,  Instead Of Thegovernment's Judging Of And

Determining Its Own Powers Over The People.

But All This "Trial By The Country" Would Be No Trial At All "By The

Country," But Only A Trial By The Government,  If The Government

'Could Either Declare Who May,  And Who May Not,  Be Jurors,  Or

Could Dictate To The Jury Anything Whatever,  Either Of Law Or

Evidence,  That Is Of The Essence Of The Trial.

If The Government May Decide Who May,  And Who May Not,  Be

Jurors,  It Will Of Course Select Only Its Partisans,  And Those Friendly

To Its Measures. It May Not Only Prescribe Who May,  And Who May

Not,  Be Eligible To Be Drawn As Jurors; But It May Also Question Each

Person Drawn As A Juror,  As To His Sentiments In Regard To The

Particular Law Involved In Each Trial,  Before Suffering Him To Be

Sworn On The Panel; And Exclude Him If He Be Found Unfavorable To

The Maintenance Of Such A Law. [1]

So,  Also,  If The Government May Dictate To The Jury What Laws They

Are To Enforce,  It Is No Longer A " Trial By The Country," But A Trial By

The Government; Because The Jury Then Try The Accused,  Not By Any

Standard Of Their Own   Not By Their Own Judgments Of Their Rightful

Liberties   But By A Standard. Dictated To Them By The Government.

And The Standard,  Thus Dictated By The Government,  Becomes The

Measure Of The People's Liberties. If The Government Dictate The

Standard Of Trial,  It Of Course Dictates The Results Of The Trial. And

Such A Trial Is No Trial By The Country,  But Only A Trial By The

Government; And In It The Government Determines What Are Its Own

Powers Over The People,  Instead Of The People's Determining What

Are Their Own Liberties Against The Government. In Short,  If The Jury

Have No Right To Judge Of The Justice Of A Law Of The Government,

They Plainly Can Do Nothing To Protect The People Against The

Oppressions Of The Government; For There Are No Oppressions Which

The Government May Not Authorize By Law.

The Jury Are Also To Judge Whether The Laws Are Rightly Expounded

To Them By The Court. Unless They Judge On This Point,  They Do

Nothing To Protect Their Liberties Against The Oppressions That Are

Capable Of Being Practiced Under Cover Of A Corrupt Exposition Of

The Laws. If The Judiciary Can Authoritatively Dictate To A Jury Any

Exposition Of The Law,  They Can Dictate To Them The Law Itself,  And

Such Laws As They Please; Because Laws Are,  In Practice,  One Thing

Or Another,  According As They Are Expounded.

The Jury Must Also Judge Whether There Really Be Any Such Law,  (Be

It Good